West Law Report

Disability discrimination ban applies to carers too

Posted in Court of Justice of the European Communities (ECJ) (cas, Times Law Report by mrkooenglish on August 1, 2008

From The TimesJuly 29, 2008

Disability discrimination ban applies to carers too
Coleman v Attridge Law (a Firm) and Another Case C-303/06 in the Court of Justice of the European Communities

Court of Justice of the European Communities

Published July 29, 2008

Coleman v Attridge Law (a Firm) and Another Case C-303/06

Before V. Skouris, President and Judges P. Jann, C. W. A. Timmermans, A. Rosas, K. Lenaerts, A. Tizzano, M. Ilešic, J. Klucka, A. Ó Caoimh, T. von Danwitz and A. Arabadjiev Advocate-General M. Poiares Maduro (Opinion January 31, 2008)

Judgment July 17, 2008

The prohibition of direct discrimination against and harassment of disabled people in employment, provided for in the Community disability directive, was not limited to employees who were themselves disabled but extended to unequal treatment and harassment of a non-disabled employee for reasons connected with the disability of his child.

The Grand Chamber of the Court of Justice of the European Communities so held on a reference for a preliminary ruling under article 234 EC by the London South Employment Tribunal.

The claimant, Ms Sharon Coleman, a legal secretary working for the defendants, Attridge Law, a firm of solicitors in London, and Mr Steve Law, a partner in that firm, gave birth to a son who suffered from apnoeic attacks and congenital laryngomalacia and bronchomalacia and needed special care. The claimant was his primary carer.

After ceasing her employment, the claimant brought a claim of unfair constructive dismissal against the defendants, alleging breaches of the Disability Discrimination Act 1995, which, by virtue of amendments made by the Disability Discrimination Act 1995 (Amendment) Regulations (SI 2003 No 1673), transposed into United Kingdom law Council Directive 2000/78/EC of November 27, 2000, establishing a general framework for equal treatment in employment and occupation (OJ 2000 L303/16).

In the proceedings before the employment tribunal, the reference to the European Court was made on the basis of a presumed set of facts, not yet established, which included that on the claimant’s return from maternity leave, she had been treated in a way that parents of non-disabled children would not have been, in that she had, inter alia, not been allowed to return to her existing job and had less flexibility of working hours, and had been subjected to abusive and insulting comments about her and her child.

Article 1 of the directive provides: “The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of … disability … as regards employment and occupation, with a view to putting into effect in the member states the principle of equal treatment.”

Article 2 provides: “(1) For the purposes of this Directive, the ‘principle of equal treatment’ shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in article 1.

“(2) For the purposes of paragraph (1): (a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation…

“(3) Harassment shall be deemed to be a form of discrimination within the meaning of paragraph (1), when unwanted conduct related to any of the grounds referred to in article 1 takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment…”

Article 3 provides: “(1) … this Directive shall apply to all persons … in relation to: … (c) employment and working conditions…”

In its judgment the Grand Chamber of the Court of Justice held:

It did not follow from articles 1, 2(1), 2(2)(a) or 3(1)(c) of Directive 2000/78 that the principle of equal treatment which it was designed to safeguard was limited to people who themselves had a disability within the meaning of the directive.

On the contrary, the purpose of the directive, as regarded employment and occupation, was to combat all forms of discrimination on the ground of disability.

The principle of equal treatment enshrined in the directive in that area applied not to a particular category of person but by reference to Where it was established that an employee in a situation such as that in the present case suffered direct discrimination on grounds of disability, an interpretation of Directive 2000/78 limiting its application only to people who were themselves disabled was liable to deprive the directive of an important element of its effectiveness and to reduce the protection which it was intended to guarantee.

Since article 2(3) deemed harassment to be a form of discrimination within article 2(1), the directive was similarly not limited to the prohibition of harassment of people who were themselves disabled.

On those and further grounds, the Court ruled:

1 Directive 2000/78, and, in particular, articles 1 and 2(1) and (2)(a) thereof, were to be interpreted as meaning that the prohibition of direct discrimination laid down by those provisions was not limited only to people who were themselves disabled.

Where an employer treated an employee who was not himself disabled less favourably than another employee was, had been or would be treated in a comparable situation, and it was established that the less favourable treatment of that employee was based on the disability of his child, whose care was provided primarily by that employee, such treatment was contrary to the prohibition of direct discrimination laid down by article 2(2)(a).

2 The directive, and in particular articles 1 and 2(1) and (3), were to be interpreted as meaning that the prohibition of harassment laid down by those provisions was not limited only to people who were themselves disabled.

Where it was established that the unwanted conduct amounting to harassment which was suffered by an employee who was not himself disabled was related to the disability of his child, whose care was provided primarily by that employee, such conduct was contrary to the prohibition of harassment laid down by article 2(3).

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One Response

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  1. Travis said, on October 8, 2008 at 2:22 am

    Good information. Thank You.


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